Maria Scotland appeared for the appellant in the recently reported case of Re A (A CHILD) (supervised contact) (s91(14) Children Act 1989 orders) [2021] EWCA Civ 1749. In this article, Maria discusses the guidance that this case offers in relation to supervised contact and updating the Re P guidance on the making of a s.91(14) order.

On the 12/10/21 King LJ, Newey LJ and Arnold LJ considered an appeal by a mother against orders made by HHJ Dawson in private law proceedings in relation to her daughter, A, who is rising 7 years of age providing that the child should continue to live with her father whilst her time with her mother would be limited to professionally supervised time only every fortnight for up to 6 hours together with an order that the mother was prohibited from making any further applications without the court’s permission for 2 years under section 91(14) of the Children Act 1989 (‘s91(14)’).

Permission was given for the mother’s appeal on two grounds that (1) the judge was wrong to order supervised contact without providing a pathway for progressing to more natural (unsupervised) contact and (2) the making of the s.91(14) order at the same time as limiting contact to supervised only fettered any movement to unsupervised contact and the development of a more natural relationship between mother and daughter.

The Court Appeal disagreed on both grounds and dismissed mother’s appeal whilst providing valuable guidance on supervised contact and updating the Re P, guidance given by Butler-Sloss LJ on the making of a s.91(14) order, 22 years after the 1999 leading case[1].

Below are the salient points and guidance provided in this judgment handed down on the 23/11/21, which include:

Final Child Arrangements Orders – (Indefinite) Supervised Contact Only:

  • In the ordinary course of events, supervision of contact should be regarded as a stepping-stone to unsupervised contact.
  • That said as per Lady Justice’s King’s dicta in Re S (a Child) [2015] EWCA Civ 689, at para.[23], where appropriate ‘such a route should … be deployed as a means of allowing a child to continue to have a relationship with her absent parent’. This would include a case where the choice is not between supervised and unsupervised contact, but between no direct contact or only supervised contact.
  • As such, the court can (if the facts of the case demand) make an order for indefinite supervised contact; that is a final order that does not define a pathway from supervised to unsupervised contact.

Order under s91(14) Children Act 1989:

The Re P legal principles when making a s91(14) order are found in Re P at p19, as follows:

  • Section 91(14) should be read in conjunction with s. 1(1).
  • The power to restrict applications to the court is discretionary and in the exercise of its discretion the court must weigh in the balance all the relevant circumstances.
  • An important consideration is that to impose a restriction is a statutory intrusion into the right of a party to bring proceedings before the court and to be heard in matters affecting his/her child.
  • The power is therefore to be used with great care and sparingly, the exception and not the rule.
  • It is generally to be seen as a useful weapon of last resort in cases of repeated and unreasonable applications.
  • In suitable circumstances (and on clear evidence), a court may impose the leave restriction in cases where the welfare of the child requires it, although there is no history of making unreasonable applications.
  • In cases under paragraph 6 above, the court will need to be satisfied first that the facts go beyond the commonly encountered need for a time to settle to a regime ordered by the court and the all too common situation where there is animosity between the adults in dispute or between the local authority and the family and secondly that there is a serious risk that, without the imposition of the restriction, the child or the primary carers will be subject to unacceptable strain.
  • A court may impose the restriction on making applications in the absence of a request from any of the parties, subject, of course, to the rules of natural justice such as an opportunity for the parties to be heard on the point.
  • A restriction may be imposed with or without limitation of time.
  • The degree of restriction should be proportionate to the harm it is intended to avoid. Therefore, the court imposing the restriction should carefully consider the extent of the restriction to be imposed and specify, where appropriate, the type of application to be restrained and the duration of the order.”

Re P guidance had withstood the test of time:

Having been endorsed in several subsequent cases however the fact is that the case is now 22 years old and needs to be considered in a modern context. Lady Justice King observed that the world is an entirely different place, with the advent of the smart phone, social media, use of emails, the withdrawal of legal aid in most private law cases and the rise of litigants in person (LiP) than it was 22 years ago. The result is that it is not uncommon for the parties and even the judge in a case today to be bombarded with emails from a LiP parent. Such behaviour may be part of a campaign by one parent against the other, which amounts to a deeply disturbing form of oppressive behaviour, causing the distress and anxiety to the other parent and children whilst same time steering the focus of the case away from the real welfare issues. The court referred to a more recent case, where this issue was considered, in Agarwala v Agarwala [2016] EWCA Civ 1252 (Agarwala) at [72]:

“Whilst every judge is sympathetic to the challenges faced by litigants in person, justice simply cannot be done through a torrent of informal, unfocussed emails, often sent directly to the judge and not to the other parties.  Neither the judge nor the court staff can, or should, be expected to field communications of this type.  In my view judges must be entitled, as part of their general case management powers, to put in place, where they feel it to be appropriate, strict directions regulating communications with the court and litigants should understand that failure to comply with such directions will mean that communications that they choose to send, notwithstanding those directions, will be neither responded to nor acted upon.”

Re P guidance paragraphs 4 and 5 of Re P: 

s.91(14) orders are “generally to be seen as a useful weapon of last resort in cases of repeated and unreasonable applications” and that “the power is to be used with great care and sparingly, the exception and not the rule”, King LJ observed, that the courts have been reluctant to make these orders save for the most egregious cases. This, she observed, in the context of the issues of the modern world, including LiP parents as referred to above, was not appropriate and said that the reluctance shown by the judiciary to make these orders was understandable, but misplaced.

Issues facing the Re P guidance, 22 years on: 

Based on the challenges facing the court now, as opposed to those in 1999, as set out above Lady Justice King made the following observations of how the Re P guidance should now be applied to include providing protection to a parent of coercive control:

  • No requirement for number of applications - the court’s jurisdiction to make such an order is not limited to those cases where a party has made excessive applications. It may be one substantive live application but that a person’s conduct overall is such that an order made under s91(14) is merited. the Re P guidelines do not say that a s91(14) order should only be made in exceptional circumstances, rather Guideline 4 says such an order should be the ‘exception and not the rule’
  • This is anticipated by Guideline 6 of Re P: ‘In suitable circumstances (and on clear evidence), a court may impose the leave restriction in cases where the welfare of the child requires it, even if the proceedings were not dogged by numerous applications.
  • Unmeritorious applications - the making of a s91(14) order is not only to protect a child from the effects of endless but also from unmeritorious applications.
  • Example (in the current case) – where there have been vindictive complaints to the police and social services.
  • Coercive control - where the judge  forms the view that the type of behaviour indulged in by one of the parents amounts to ‘lawfare’, that is to say the use of the court proceedings as a weapon of conflict, the court may feel significantly less reluctance than has been the case hitherto, before stepping in to provide by the making of an order under s91(14), protection for  a parent from what is in effect, a form of coercive control on their former partner’s part.

Section 67 (3) of the Domestic Abuse Act 2021 relates to orders under s91(14):

When it comes into effect (the Bill received Royal Assent on 29 April 2021), the provision relating to s.91(14) will be as follows:

(1) This section makes further provision about orders under section 91(14) (referred to in this section as ‘section 91(14) orders’).

(2) The circumstances in which the court may make a section 91(14) order include, among others, where the court is satisfied that the making of an application for an order under this Act of a specified kind by any person who is to be named in the section 91(14) order would put—

(a)the child concerned, or

(b)another individual (‘the relevant individual’), at risk of harm.

(3) In the case of a child or other individual who has reached the age of eighteen, the reference in subsection (2) to ‘harm’ is to be read as a reference to ill-treatment or the impairment of physical or mental health.

(4) Where a person who is named in a section 91(14) order applies for leave to make an application of a specified kind, the court must, in determining whether to grant leave, consider whether there has been a material change of circumstances since the order was made.”

Traps to be avoided by the court (when granting a s.91(14) order): 

In considering whether it was appropriate to make an order under s91(14) the judge should be careful not to fall into the trap of either using the order to provide ‘breathing space’ whilst contact settles down: Re G (Residence: Restriction on Further Applications) [2008] EWCA Civ 1468; [2009] 1 FLR 894, or of  making future leave conditional (for example a parent having treatment): Re S (Permission to Seek Relief) [2006] EWCA Civ 1190; [2007] 1 FLR 482.

Conclusions & Discussion Points:

Every case must turn on its own unique facts but what has to be borne in mind is that whilst a court can make both a supervision order and an order under s91(14) in any individual case, each has to be considered separately on their merits; that is not, however, to say that, as here, the same facts and features of a case may not lead a judge to order both supervision of contact and a s91(14) order.

Maria Scotland practices exclusively in family law with a specialism in high-end/ big money financial remedy applications and (private law) children work. She accepts instructions to act through a solicitor or directly from members of the public on a Direct Access basis. Maria is ranked in the Legal 500 in family law (including divorce & financial remedy). She is one of the leading family law juniors and is the joint head of the Family Team at 5SAH.


[1] Re P (Section 91(14) (Guidelines)(residence) and Religious Heritage) sub nom: In Re P (A Minor) (Residence Order: Child’s Welfare) [2000] Fam 15; [1999] 2 FLR 573